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Women in Society Volume 6, Autumn 2013

ISSN 2042-7220 (Print) ISSN 2042-7239 (Online)

Volume 1, Spring 2011Women’s Rights and Legal Pluralism: A Case Study of the Ethiopian Somali Regional State

Berihun Adugna Gebeye, School of Law, Jigjiga University, Ethiopia1

Abstract This study examines women’s rights and legal pluralism in the Ethiopian Somali regional state. To this end, a socio-legal research methodology was used. Both secondary data and primary data (collected through semi-structured interviews, focus group discussions and observations) were utilised. The primary data was collected from judges, prosecutors, community elders, men and women. The study revealed that personal property, participation, family rights and marriage rights of women are compromised under customary law –xeer and religious law –sharia. Some of the practices of xeer and sharia are incompatible with the FDRE and Somali constitutions and universal human rights standards. It is also found that women subscribe to these laws not always by their consent but due to fear of social exclusion and loss of social security from their kinship. Moreover, the family law which has been applied in Somali region sustains the inequality and discrimination of women. It is argued that women’s rights are compromised to protect the pluralistic features of the Ethiopian society. The principle of legal pluralism has the potential of eroding the constitutional guarantees given to women. The study asserts that to enforce the

1 I would like to thank Dr. Ruth Gaffney-Rhys and the anonymous reviewers for their constructive comments. The author can be reached at [email protected].

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Volume 1, Spring 2011constitutionally guaranteed women’s rights, proper monitoring of the application of legal pluralism is required.

Keywords: Women rights, Legal Pluralism, Ethiopia, Somali Regional State

Introduction Legal pluralism is an empirical reality in various parts of the world especially in Africa (Sezgin, 2010). Most African states recognize the parallel application of customary and religious laws with statutory laws (Kyed, 2009; Frémont, 2009; Sage, 2005; Nina and Schwikkard, 1996). However, some of the customary and religious laws are incompatible with women’s rights. For instance, the rights of women in marriage, inheritance and property administration are jeopardized under the customary and religious laws (Centre on Housing Rights and Evictions, 2005; Fluet and Calaguas, 2006; ICRW, 2007; SIHA, 2011). Due to the clash of African culture and traditions with human rights, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment, domestic violence and rape (Ozoemena, 2006; Manjoo, 2007).

Legal pluralism is recent in the modern legal history of Ethiopia. Previously there was a practice of uniform laws for all communities and the application of customary and religious laws was abolished by the civil code (Civil Code, Article 3347(1)). However, as noted by Assefa (2011) uniform laws were proved to be ineffective in regulating societies with diversity. Moreover, there were many rights issues which the various nations, nationalities and peoples raised with regard to the centralization of governance and laws. As a response, the Federal Democratic Republic of Ethiopian (FDRE) constitution introduced federalism to share power between the centre and the regions with a view to accommodating diversity and upholding the unity of the various

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Volume 1, Spring 2011ethnic groups. The FDRE constitution also introduced legal pluralism as one manifestation of federalism and mainstreams it into the regional constitutions, such as the Somali regional state revised constitution. This plural legal setting allows the parallel application of customary, religious and statutory laws on personal and family issues, based on the consent of the parties. Nonetheless, some of the customary and religious laws are against the constitutionally guaranteed human rights of women, as is the case in many African countries.

This article is comprised of four parts. The first part gives a general overview of women’s rights and legal pluralism in the Ethiopian context. The second explores legal pluralism in Somali regional state. The third examines women’s rights and legal pluralism in Somali regional state. The fourth makes a critical appraisal of the compatibility of customary law –xeer, religious law-sharia and statutory laws with the FDRE and Somali constitutions; the final part concludes the discussion.

MethodsThe study took the Somali regional state as a case study to examine women’s rights in the Ethiopian pluralistic legal tradition, as the Somali society highly relies on customary and religious laws due to their social organization. A socio legal research methodology was used to investigate the study and both primary and secondary data were used. To this end, the study was carried out through a review of literature sourced from the internet, books, articles, reports, laws, case studies and an analysis of primary data collected through interviews, focus group discussions and observations. The primary data was collected from fifty persons. The participants of the study were selected persons/officials from the State Council, the Supreme Court, the Supreme Court of Sharia, the Justice Bureau, the Women Affairs Bureau, community elders, men and women. In selecting the concerned participants, the researcher employed a purposive

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Volume 1, Spring 2011sampling technique since it enables the researcher to acquire qualified information from selected individuals based on the experience, position, expertise and other attributes the study so requires. Convenient and/or availability sampling was also used depending upon the circumstances and research need.

Legal Pluralism and Women’s Rights in Ethiopia: An Overview The FDRE constitution guarantees human rights in general and women’s rights in particular. It further recognizes the pluralistic features of the Ethiopian society by allowing the parallel application of customary and religious laws on personal and family issues. However, it should be noted that the application of customary and religious laws are limited to personal and family matters based on the consent of parties. It is evident that most customary and religious laws place women in an inferior position as the laws are constructed based on a patriarchal society. In this regard, Okin (1999) notes that multiculturalism will not advance the rights of women, as the system is dominated by men.

Though the FDRE constitution restricts the application of customary laws to family and personal matters, the empirical reality shows that they govern a lot of matters (Assefa, 2011). Studies have confirmed that customary laws exist in full force and society uses them to settle disputes in their day-to-day lives. The jurisdictions of the traditional courts transcend family and personal matters. For instance, the traditional institutions of the Waata (Arsi) Oromo settle disputes involving murder and other serious bodily injury through the traditional institutions (Teferra, 2005). The Gedeo of the Southern Nations, Nationalities and Peoples have their own customary judicial institutions which deliver justice both in civil and criminal cases (Alemayehu, 2005). The same practice exists in the Gurage of Ethiopia as their customary judicial system deals with disputes which arise out of the network of kinship, economic and social rights and obligations existing

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Volume 1, Spring 2011among themselves (Robele, 2005). Similarly Oromo and Somali societies highly rely on the Gada and the xeer systems which govern all facets of matters (Jundi, 1994; Kalif, 1996). Furthermore, a study by Donovan and Assefa (2003) revealed that Amhara, Gumus and Somali societies settle homicide cases by their respective customary laws.

Customary laws in Ethiopia treat women differently and unequally with men (Centre on Housing Rights and Evictions, 2005). They place women in an inferior position both in the family and society. For instance, the various customary laws in Oromia, Amhara, Afar, Somali, Southern Nations, Nationalities and Peoples discriminate against women in marriage, inheritance and property administration, especially in land and thereby violate women’s rights (Østebø, 2009; Flintan et al, 2008; SIHA, 2012; Debsu, 2009; Asfaw and Satterfield, 2010; Haile, 2005).

With regard to religious law, though the FDRE constitution says religious law can be applicable to govern personal and family matters of individuals based on their consent, there is no religious law which is given state recognition other than sharia law (See Proclamation No. 188/1999, A Proclamation to Consolidate Federal Courts of Sharia, Federal Negarit Gazzeta). It can be fair to hold that sharia law is the only religious law in Ethiopia. Human rights jurisprudence reveals that there is some sort of incompatibility between sharia law and human rights law especially with women rights partly due to the difference in philosophical assumptions (Said, 1979; An-Na’im, 1990; Bielefeldt, 1995; Reed, 2004; Tucker, 2008; Garces, 2010). The application of sharia law in marriage and inheritance is sometimes against the constitutionally guaranteed rights of women (Assefa, 2011; Abdo, 2011; Backer, 2013).

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Volume 1, Spring 2011Article 9(1) of the FDRE constitution stipulates that “The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect”. Moreover, article 35(4) of the constitution especially provides that “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited”. At the same time, article 34(5) provides that “This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute”. But for the applicability of customary and religious laws, article 78(5) of the constitution requires official state recognition either by the House of Peoples Representatives or State councils. Hence, the constitutional provision did not suffice to apply customary and religious laws. While the House of Peoples Representatives officially recognizes sharia courts to apply sharia law, it hasn’t officially recognized any customary law to date. It can be argued that the adjudication of personal and family matters under customary law is unconstitutional. Even without questioning the constitutionality of the application of customary law on the one hand and religious law on the other hand, some of the substantive sharia and customary laws contradict the constitutionally guaranteed women’s rights from the outset.

The constitutional practice of legal pluralism has been a hurdle to the advancement and enforcement of the rights of women (especially rural and pastoral women). Rural and pastoral women may not have access to the formal justice system due to lack of awareness, illiteracy and cultural and social impediments. Available research reveals that both the “formal legal system and the reliance on various customary laws have left the vast majority of women with little protection from harmful traditions of discrimination, including in land and property, in marriage and family, and in the informal market and access to resources”

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Volume 1, Spring 2011(Vaughn and Tronvoll, 2003). In particular, various cultural traditions impose a distinctly gendered burden on Ethiopian women (Smith, 2009). These practices include female circumcision, early marriage, marriage by abduction, and various practices for pregnant and labouring women. Woldegiorgis (2002) notes that the constitutional ideal of respect for human rights in general, and women’s rights in particular, is far from being realized.

However, Smith (2009) and Østebø (2009) argue that there are instances where customary laws protect women rights more effectively than state laws. Stevens (2000) notes that the informal justice system which applies the customary and religious laws should not be considered as backward and discriminatory in its totality, as it opens a door for women to access justice under the system. Hence, the mere fact of recognizing women’s rights in the constitution will not serve any purpose unless implemented. By the same token, recognizing the pluralistic features of the many ethnic groups by allowing the parallel application of customary and religious laws will not advance the interests of different groups, such as women unless properly monitored. Women should be given the best protection from the formal and informal justice systems. But they should not be discriminated under the guise of legal pluralism.

Legal Pluralism in the Somali Regional State: Navigating the System The Somali Regional State (the region) is one of the constituent member states of the Ethiopian federation established under the 1995 FDRE Constitution. It is located in the South Eastern part of the country and characterized by low rain fall and arid soil. The regional state is inhabited by Somalis whose livelihood is dependent mainly on pastoralism; but there are also agro-pastoral and urban dwellers. Somalis have a form of social organization based on a complex web of affiliation and identities such as clan and class, which are highly

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Volume 1, Spring 2011attached to customary and religious laws. The Somali Regional State Revised Constitution (Somali constitution) which was adopted in 2002, like the FDRE constitution, reaffirms the parallel application of customary and religious laws in personal and family matters based on consent. Accordingly, there are customary, religious and statutory laws which can be equally applicable in the adjudication of personal and family matters in the region. These laws will be explored and discussed below with a view to give perspective to the plural legal environment of the region. The objective here is not to discuss these laws in great depth but instead explore the laws which have an impact on women as it is the central point of the study. By doing so, it is intended to critically examine these laws in light of women’s rights recognized under the FDRE and Somali constitutions.

The Somali Customary Law- Xeer The Xeer system is a political contract among a mag-paying group who assumed political and juridical responsibilities, especially in paying and receiving compensation for acts committed by members of one group against another - even over vast distances (Accord, 2009). A Mag or Diya is a small social unit that takes collective responsibility for their own security, as well as undertaking an obligation to compensate others. Mag-paying group refers to a group which is responsible for any harm committed by one of its members. The xeer is a traditional contractual agreement applicable in the social grid of clan and sub-clan structure. Xeer is based on precedents: whenever similar cases arise, they will be decided by referring to former similar decisions. However, if the case under consideration raises a new issue, they will make a new law as far as it is acceptable to the society. Despite some differences in the xeer of different clans, there are some essential elements of xeer which all Somali communities subscribe to. In the interview with community elders, especially with Ahmed Nour and Abdi Ali, it is found that all the xeer systems have a certain amount of specialization of different functions within the traditional

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Volume 1, Spring 2011legal system. There are odayal or xeer beegti (judges), xeer boggeyaal (jurists), guurtiyaal (detectives), garxajiyaal (attorneys), murkhaatiyal (witnesses) and waranle (police officers) to enforce the law.

Substantive Laws of XeerXeer has never been formally codified and remains an oral law passed down through generations. In this regard Gundel (2006) notes that the substantive and procedural rules of xeer are not written but are found in the minds of experienced tribal elders or clan leaders and passed to the next generation orally. Notten also notes that every Somali knows xeer as it consists of only a few basic principles and relatively few prohibitions (Van Notten, the Somali law, Philosophy 105 Readings). Besides, every person from the age of seven onwards is instructed in the laws of xeer. Most xeer are about collective defence and security and political cohesion in general. Nevertheless, there are some generally accepted principles of xeer, which are applied with only minor variations from lineage to lineage, and inform the reciprocal rights and obligations of the individual, such as the welfare of guests, protection of the weak and vulnerable, and sharing of natural resources such as grazing pastures and water (Gundel, 2006). Xeer, like criminal law, forbids acts of homicide, assault, torture, battery, rape, accidental wounding, kidnapping, abduction, robbery, burglary, theft, arson, extortion, and fraud, as well as acts akin to tort, like the unintentional causing of damage to another’s property. The collective payment of mag/diya is ordered if a violation happens (Le Sage, 2005; Gundel, 2006; Donovan and Getachew, 2003).

In the interview held with community elders (interview with Beshir Abdulahi, Hassen Ahmed and Abdi Hussein), men (interview with Abdifatah Mohammed and Abdikerim Sh. Abdi) and women (interview with Nimo Mohammed and Ubah Abdinasir), it is noted that xeer, like civil laws, regulate the private relationships of individuals in society especially with regard to family obligations, including payment of dowry

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Volume 1, Spring 2011(yarad, dibar, and mahar), the inheritance of a widow by a dead husband’s brother (dumaal), and a widower’s rights to marry a deceased wife’s sister (higsiisan). Contracts about family matters such as marriage, children, divorce, and inheritance, are usually formed with the assistance of a religious official whose help is sought also if these matters are in dispute (Gundel, 2006). In the focus group discussions held with men and women on the one hand and community elders on the other hand, it was stated that the right to choose one’s husband or wife is in the hands of the parents in the Somali society. While girls can be married off as soon as they reach puberty, boys are eligible when they are 20 years old. Since men can marry up to four wives, presumably they can choose their second and subsequent wives. However, a woman’s freedom to contract is comparatively restricted as she can only be married to one husband at a time, while a man can take up to four wives, provided he treats them all equally. Moreover, a woman marries at early age than a man. Furthermore, an unmarried woman who is raped will marry her rapist (PDRC, 2002).

In the focus group discussion held with men, women and community elders, it is stated that with regard to inheritance, if a husband dies, his wife will usually be offered to marry one of his brothers. If she declines, her late husband’s clan is no longer obligated to pay her household money. If she is pregnant, however, she must stay with her late husband’s clan until the child is two years old, after which the child will remain with the father’s family until adulthood. A widow is further entitled to the fruits of her late husband’s land and livestock while she lives. If a wife dies, her family will usually offer the husband one of her sisters in marriage. Where a person dies intestate, his sons and unmarried daughters inherit equally. Nonetheless, women no longer stand to inherit from their parents once they marry.

Xeer also has its own conception of international humanitarian law which is applicable in inter-clan conventions on protection and

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Volume 1, Spring 2011security, especially in times of war. Fighters are expected to observe strict rules during a battle, including treatment of captured and wounded opponents. Elders, women, children, the sick, religious men, known as wadaad, poets, guests and the traditional elders especially the Sultaan and Garaad are untouchable groups during attack (Le Sage, 2005).

In xeer, the law in general and crimes in particular are defined in terms of property rights. The law is compensatory rather than punitive. As noted by Notten, there is no such thing as prison in Somali customary law. Notten asks “Why is it that the Somali customary law do not call for prisons?” And he himself gives an answer, “well, prisons are used to lock up dangerous people. But who should decide who is dangerous? And who will pay the cost of locking up?” (Van Notten, n.d). The Somali answer is that the family of the dangerous person must make that decision and bear itself the cost of compensation. Compensation is usually calculated in terms of camels and alternatively cows, goats and sheep. In the focus group discussion held with men, women, and community elders, the amount of compensation which goes to a female, either for body injury or death, is half of the amount of compensation which goes to a male. For instance, the compensation for killing of a man and a woman is 100 and 50 camels respectively.

Procedural Laws of XeerIn the xeer system, a case is always heard at the lowest level of the clan that is possible. This ranges from the qoys (nuclear family), up through the reer (closest relatives), jilib (first diya group), and laaf (sub-clan) to the qolo (clan). The elders chosen to act as judges over a dispute are known as xeer beegti. For a given case, however, the xeer beegti are usually a mixed group drawn from the aggrieved clan, the offending clan and possibly a neutral, third-party clan, if needed (Sage, 2005). Xeer cases prevent several different types of individuals from

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Volume 1, Spring 2011participating in dispute adjudication; persons who have close family relations with the parties, persons who have personal grievances against either party, and persons who have previously sat in judgment on the same case are all excluded. Religious and political leaders are also not allowed to be judges in a case, to keep the integrity and independence of the xeer (Gundel, 2006).

In the focus group discussion held with community elders it is stated that once a court is formed, it will appoint a recorder who memorizes and summarizes the oral proceedings for the elders. The court then announces when and where it will hear the case. When the court session opens, the court invites the plaintiff to state his case. The plaintiff has the right to appoint a representative to make the presentation on his behalf. During the presentation, the plaintiff has the opportunity to confer with his family to make sure that he has not forgotten anything. When the plaintiff has finished, the court asks him to summarize his case and state his demands. The court asks the defendant to present his defence and any counterclaims. Then the court adjourns to deliberate on whether any witnesses should be heard.

The court adjourns again to evaluate the evidence. If less than three witnesses support a fact, or if the witnesses contradict each other, the court will proceed to oath taking. There are several types of oaths. In the interview with men (interview with Aliye Ahmed, Abdihakim Abdulahi and Abdiselam Ahmed), women (interview with Filson Abdi and Ferdosa Mohammed) and community elders (interview with Muhmud Mohammod, Hussein Jibril and Esmael Ahmed), it is noted that there are three types of oath; the first oath is “I swear by Allah”, the second oath is a triple oath which the defendant says three times “I swear by Allah” and the third oath is the one that is repeated fifty times by the defendant and fifty members of the defendant's family. Even when the plaintiff fails to convince the court of his case, the court will

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Volume 1, Spring 2011usually not rule in favour of the defendant until the latter has taken an oath of innocence. After making all these, the final verdict, is referred to as garr in Somali, will be given.

Although xeer remains a highly utilized and effective system in the Somali society, at the same time, it prevents vulnerable groups from accessing justice. Though all men can, in theory, participate in negotiations and take part in the mediation, access has normally been open only to men of a certain age (not young men) and no access is allowed to women or minorities. In this way women can only be represented by male relatives, and were not allowed to represent themselves, even when they were the victims, as in cases of rape. Even if xeer provides a framework for the protection of women, it doesn’t allow them to participate at any level in the xeer system at all (Gundel, 2006).

Religious Law- Sharia In the Islamic scholarship there are four sources for sharia law; the Quran, Sunna, Ijma and Qiyas (Tucker, 2008). There are also four schools of thought; the Hanefite, Malaikite, Shafite and Hanabalite schools, named after those individuals who are responsible for the creation of the schools. These form the roots of Islamic jurisprudence. The Somalis subscribe to the Shafite school of thought in the Islamic jurisprudence (Liebesny, 1975). The school emphasized the use of proper instibat (derivation of laws) through the rigorous use of legal principles as opposed to speculation and guess work (www.islamawareness.net/Madhab/shafi/shafi.html, 2013). The school is considered to be one of the most conservative of the four schools of Islamic jurisprudence, but there are many adherents of the shafi’i tradition who maintain liberal views in practicing their religion. Sharia governs every aspect of life in a Muslim society. In some Muslim countries, like Iran and Saudi Arabia, sharia law governs not only the relationship between individuals, be it civil or criminal case, but also

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Volume 1, Spring 2011the relationship between the state and the people. However, in Ethiopian state and religion are separate and it is one of the basic principles of the FDRE and Somali constitutions (FDRE constitution, Article 11). Despite the separation of the state and religion, both constitutions allow the application of sharia law to govern some personal and family matters. Marriage under Sharia Law Marriage has a dual character under Islamic law; it is the fulfilment of a moral imperative to marry, as an essential part of leading a good Muslim life, and it is a binding legal contract that must meet certain conditions in form and content (Tucker, 2008). For the conclusion of valid marriage the consent of the man and the guardian of the woman are required. Tucker (2008) notes that the woman gives her consent through her representative or guardian. The man, on the other hand, can give his consent by himself directly.

The marriageable age under sharia law is not fixed numerically and there are different arguments as to the exact age. Islamic scholars argue that a person will have legal capacity when s/he has the capability to issue statements and perform acts to which the law giver has assigned certain legal effects (Hashim, 1991). The basis for such capacity as they argued is aql (intellect) and rushed (discretion). As per Muslim jurists, one will have aql and rushed, when one reaches the age of puberty. Hence, the marriageable age is the attainment of puberty, which may differ from person to person. Under sharia law a man can conclude a second, a third and fourth marriage while this is not allowed for a woman. The reason why this kind of discrimination is made is obvious as per Muslim scholars (Tucker, 2008). According to them, where a man has more than one wife it is possible to determine paternity. If, however, a woman has more than one husband it is difficult to determine paternity. But when the man wants to marry other

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Volume 1, Spring 2011women, while he has a valid marriage, it is not without limitation. He should have the capability to justly deal with his wives.

Once a marriage is concluded it will have personal and pecuniary effects. The personal effects of marriage under sharia law are respect and support each other and consummation of marriage. In this regard the Quran says: “Permitted to you, on the night of the fasts, is the approach to your wives. They are your garments and you are their garments (2:187); your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand (2: 223)”. With regard to the pecuniary effects of marriage, maintenance comes first under sharia law. The husband has an obligation to maintain his wife (even if she is rich) and children. So the fact that the wife is rich does not exempt the husband from the obligation of maintenance of the family. In Islam there is no common property that is created by the fact that marriage is concluded between a man and a woman. Each owns his or her property through the whole life time of the marriage. The effect is that when the marriage dissolves, for instance, due to divorce there is no partition of property, as there is no common property. Each takes what she or he has. If the marriage is dissolved by death of one of the spouses, the survival inherits the deceased’s property. Nevertheless, spouses can create common property by entering into contractual agreement. In the interview with sharia court judges (interview with Sh. Abdi Hussein and Sh. Ahmed Mohumud) it is noted that the special contract is governed by contract law, not by sharia law.

There are three general grounds for the dissolution of marriage under sharia law; these are death, faith and divorce (Tucker, 2008). The death of one of the spouses will bring the dissolution of marriage. With regard to faith, sharia law allows marriage with the women of Ahl-alakitab “people of the Book” i.e. Christians and Jews but not vice versa (Liebesny, 1975). This means a Muslim man can conclude a

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Volume 1, Spring 2011marriage with a woman of People of the Book, but a Muslim woman cannot conclude a marriage with a man of People of the Book. Thus, if a Muslim woman concludes a marriage with a man of People of the Book unknowingly that marriage has to be dissolved or where a Muslim man converts into another non-Muslim religion, then that will be a ground to dissolve the marriage.

Divorce is the other ground for the dissolution of marriage (Tucker, 2008; Leibesny, 1975). It can be pronounced by unilateral declaration of the husband; it can come by the renunciation made by the wife; and through the mutual consent of the spouses. The husband can unilaterally repudiate his wife. This unilateral repudiation of a wife by the husband is called Talaq; it is the release from the marriage-tie either immediately or eventually, by the use of certain words-whether spoken or written by the husband. The husband has full power to dissolve the marriage at his will without assigning any reason or without even there being a reasonable ground for the divorce. However, the wife can dissolve the marriage, through the doctrine of khul, by paying compensation to the husband and upon the intervention of the Qadi/judge. Hence, the wife is not free to dissolve the marriage without any valid ground, unlike the husband. Moreover, she must convince the Qadi for the dissolution and pay proper compensation. The other form of divorce which operates on consent is Mubarh. In this case the marriage is dissolved by the mutual consent of the spouses. Inheritance under Sharia Law Inheritance is considered as an integral part of sharia law and its application in Islamic society is mandatory (Razi, 2008). The primary heirs consist of the surviving spouse, parents, sons and daughters. All remaining heirs can be totally excluded by the presence of primary heirs. But under certain circumstances, other heirs can also inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic

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Volume 1, Spring 2011granddaughter, full sister, consanguine sister and mother (http://www.islam101.com/sociology/inheritance.htm, 2013). Women are entitled to the right of inheritance. They inherit half of the share of men who have the same degree of relation to the deceased. For example, where the deceased has both male and female children, a son's share is double of a daughter's. In this regard the Quran says “4:11 Allah commands you as regards your children’s to the male, a portion equal to that of two females”.

On the issue of inheritance, there are some who argue that it discriminates against women. They argue that men and women are equal and endowed with the same benefits and rights. Hence, the half shares of women in inheritance amounts to discrimination. However, others, especially Muslim jurists, argue that sharia law protects the financial interests of women even more than men (Razi, 2008). They base their arguments on the financial sources and the responsibilities attached to men and women. Women in Islam receive assets mainly from three sources; inheritance, Mahr and maintenance (http://www.kantakji.com/fiqh/files/mawareeth/4015.pdf, 2013). On the other hand males receive double that of females on first source inheritance but they need to give Mahr to wives and maintenance to wives and other dependents. This symbolizes an assurance of economic security from the husband towards wife. So, instead of doing injustice to either side, Islam gives the man a larger portion of the inherited property to help him to meet his family needs and social responsibilities. Seen from a rights perspective it may be tantamount to discrimination, however, a holistic understanding of sharia law gives the full picture of the status of men and women. Sharia law has mechanisms to balance the status of men and women and deliver justice and equity. The issue of cultural relativism and universalism of human rights controls the debate here (Reichert, 2006; Baehr, 1999; Steiner and Alston, 2002; Viljeon, 2007). Whether the human rights approach or sharia law approach, advances the interest of women is

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Volume 1, Spring 2011ascertained and evaluated based on circumstances within which women operate. Statutory LawAfter the adoption of the federal system in Ethiopia, each regional state is allowed to come up with its own legislative, executive and judicial organs (FDRE Constitution, Article 50(2)). The legislative organ of the regional states, the State Council, has the power to legislate on matters failing under state jurisdiction. As regional states are delimited on the basis of settlement patterns, language, identity and consent of the people, regional states have different peculiar features which need legislative intervention (FDRE constitution, Article 46(2)). Hence, regional states have adopted their own constitution and other laws which govern their own affairs in conformity with the FDRE constitution.

The Somali regional state, as a member of the Ethiopian Federation, adopted its first regional constitution in 1995 and revised it in 2002. The revised constitution makes human and democratic rights one of the fundamental principles of the constitution. In particular, the rights of women are expressly recognized in the constitution (Somali Constitution, Article 35). The right to equality of men and women in the enjoyment of rights and especially in marriage is duly recognized. In addition, by taking into account the historical inequality and discrimination which Ethiopian women faced, the constitution provides for affirmative action to rectify such historical imbalances (Somali Constitution, Article 35(2)). As part of this endeavour, the constitution imposes duties on the state to eliminate the influences of harmful customs, laws, and practices that oppress or cause bodily or mental harm to women (Somali Constitution, 35(4)).

The Somali constitution further provides for state policy objectives to guide regional governments to achieve the aspirations of the Somali

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Volume 1, Spring 2011people. There are political, economic, social, cultural and environmental objectives, which guide the regional government in running its legislative, executive, and judicial functions at all levels (Somali Constitution, Article 99-104). Especially, it requires the regional government to arrange conditions for the equal participation of women with their male counterparts in development and social activities. By taking into consideration the FDRE and Somali constitutions, the regional government has enacted many laws to govern the affairs of the region. Most of the laws which are enacted by the State Council deal with the establishment of different regional bureaus/offices/centres. For example, the establishment of the women affairs office advances the rights and interests of women in the region, as it works on the elimination of harmful traditional practices against women and bringing women’s rights issues to policy debates and governance. However, the state council has not adopted family laws as the 1960 civil code of Ethiopia governs family issues. But the civil code was incompatible with the FDRE constitution, especially with regard to the rights of women. Hence, a revision of family law was necessary and the federal government passed the revised family law. Regional governments have also enacted their own regional family laws. For instance the regional state of Amhara, Tigray Oromia and Southern Nations, Nationalities and Peoples enacted their own family laws. The Somali region has been unable to adopt a family law which is compatible with the constitutions and regional realities. Hence, the courts are forced to apply the 1960 civil code to resolve family issues even though it is against the rights of women and therefore contravenes the Somali constitution and FDRE.

Women and Legal Pluralism in Somali Regional State: A Critical Assessment

Women’s Rights under International Law

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Volume 1, Spring 2011The inferior status of women is entrenched in history, culture and tradition (Seplveda et al, 2004). Even now, women are subject to discrimination in all stages of life; in income, education, health and participation in society. Various international bodies have been established with the aim of eradicating policies, actions and norms that perpetuate discrimination against women and violate women’s rights. After the Second World War, a number of treaties on the protection of women were drafted and both the United Nations Charter and the International Bill of Human Rights proclaimed equal rights for men and women and banned discrimination on the grounds of sex. Article 1 of the Universal Declaration of Human Rights (UDHR) declares that “All human beings are born free and equal in dignity and rights”. As a natural consequence of the equality of all human beings, discrimination based on race, colour, sex [emphasis added], language, religion, political or other opinion, national or social origin, property, birth or other status are prohibited. The UDHR specially stipulates the equal rights of man and woman in marriage and the family. Article 16 of the UDHR declares:

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal right as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.”

Both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), which were adopted to implement the UDHR, affirm the equal rights of men and women in the enjoyment of all civil, political, economic, social and cultural rights provided in the covenants.

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Volume 1, Spring 2011In addition, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) was adopted with a view to advance the rights and interests of women. CEDAW sets out equal rights for women, regardless of their marital status, in all fields - political, economic, social, cultural and civil and calls for national legislation banning discrimination. It allows for temporary special measures and affirmative action, to accelerate the achievement of equality in practice between men and women, and actions to modify social and cultural patterns that perpetuate discrimination. CEDAW underlines equal responsibilities of men with women in the context of family life. States Parties agree that all contracts and other private instruments that restrict the legal capacity of women ‘shall be deemed null and void’. In implementing CEDAW, states parties are required to give special attention to the problems of rural women.

Though the International bill of human rights and CEDAW expressly provide for the rights of women, due to the historical unequal power relationship between men and women, women face different kinds of discrimination, violence and domination. Due to the gravity of the problem, the United Nations has adopted a declaration on violence against women. The declaration, in its first article, defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. To achieve the ideals of the declaration, States are urged to condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. Moreover, States should pursue by all appropriate means and without delay a policy of eliminating violence against women.

Ethiopia has ratified the above human rights instruments and made them part and parcel of its national laws. In addition, both the FDRE

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Volume 1, Spring 2011and the Somali constitutions guarantee the rights of women by taking into consideration the historical legacy of inequality and discrimination. These constitutions call for the substantive equality of men with women in every aspect of life by a scheme of affirmative measures. Both constitutions recognized the equality of women in the enjoyment of all the rights and protections which are provided by the constitutions in general and marriage in particular. Men and women, without any distinction as to race, nation, nationality or religion, who have attained marriageable age, have the right to marry and found a family. They have equal rights while entering into, during marriage and at the time of divorce. It is stressed that marriage should be entered by the free and full consent of the intending spouses. To this end, the family is entitled to protection by society and the State as it is the natural and fundamental unit of the society. To advance the rights of women, the constitutions stipulates that customs, laws and practices which suppress or cause bodily or mental harm to women are prohibited. Women and Customary Law – Xeer Xeer treats women differently. On the one hand, women are given special protection and privilege especially in times of war. On the other hand, they are treated discriminately. Some of the rules of xeer are incompatible with women’s rights. For instance, xeer rules dealing with marriage, inheritance, violence against women, compensation and participation are against the rights of women. As discussed above, marriage is supposed to be concluded by the free and full consent of the future spouses. However, under xeer women do not have the freedom to choose their life time partners. Choosing a partner for a woman is the right of her family unlike a man. Moreover, the marriageable age under xeer for men and women is different. A woman will be able to marry when she reaches the age of puberty while the man will be able to marry when he attains the age of majority. Females are married while they are minors and it is a plain fact that early marriage will have a negative impact on the physical,

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Volume 1, Spring 2011psychological and social development of the girl and her child (Banda, 2008).

Moreover, in the event of death of the husband, the wife will be offered to marry one of her husband’s brothers or closest relatives, i.e. the practice of dumaal. In addition, there is a practice of higsiisan, which is the forced marriage of the sister of a deceased wife to the widowed husband; and Godobtir, the forced marriage of a girl into an aggrieved clan as part of a mag-payment, or to ensure a peace deal with another clan. All these arrangements, dumaal, higsiisan and godobtir, may be performed against the will of women. There is also the practice of forcing a raped woman to marry her rapist. The justification for this is to protect the woman’s and the clan’s honour, and to ensure full payment of her yarad (dowry) by the attacker’s clan to the victim’s clan, because otherwise her value has been ‘lost’. However, from a rights perspective it may seem a flagrant case of sustaining violence against women through a legal system. As discussed above, any custom, practice and law which violate women rights should be abolished and it should not be raised as a defence for the violation of women’s rights.

If the father dies intestate, the sons and unmarried daughters will inherit equally. Nonetheless, a married woman cannot inherit the property of her deceased father. In the Somali social structure women are at the crossroad. On the one hand a woman cannot be trusted by her clan once she is married, due to the fact that she lives with other clan and the benefit (especially in terms of property) she gets will go to another clan. On the other hand, a woman is also not trusted by the husband’s clan. In this regard, Gundel (2006) noted that “women are traditionally denied the right to inherit property and to play any direct political role because women traditionally are not trusted to be sufficiently loyal to their husbands’ patrilineal clan structure”. The

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Volume 1, Spring 2011woman’s right to equality in inheritance and property rights is compromised.

Moreover, xeer values women and girls half as much as men and boys. Both in blood compensation and bodily injury, the compensation which goes to the male is twofold of the female. This shows that the value of life of the male is more precious than the female. However, it is universally agreed that all human beings are equal in dignity and rights without any discrimination on the grounds of sex, race and other status.

Participation of women in the decision making process of the society is very limited. Women are passive observers of the system. They cannot stand before the courts under the xeer system even though they are victims; they will be represented by their relatives or guardians. The xeer did not have a place for women. The law making, adjudication and implementation of the customary law rests on men only. There is no possibility by which women assist and play a role in the customary justice system. Hence, women cannot be parties, witnesses and actors in the system, despite the fact that women should have the right to participation in the governance of their country in general and society in particular. Women and Sharia LawLike xeer, sharia law also treats women differently from men in many aspects. Under sharia a woman gives her consent to marriage through her guardian. She could not give her free and full consent directly. Moreover, the marriageable age under sharia law is the stage of puberty. A woman or girl will get married before attaining the age of majority. These are inconsistent with the ideals of the constitutions and human rights standards which Ethiopia ratifies. This is due to the fact that marriage should be between persons who attain the age of majority and concluded by the free and full consent of the spouses.

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Volume 1, Spring 2011

In Islamic marriage the husband should take care of his wife, children and other household expenses. The woman assumes no role in financially supporting the family. Such arrangements limit women’s rights to participate meaningfully in the decision making process of the family. As it is the husband who is responsible for the family, he is the only one who determines family issues. However, under FDRE and Somali constitutions, men and women are equal before, during and after marriage; hence both are equally responsible for the family and both can decide on family issues equally. As far as the husband is financially and spiritually capable, he can have second, third and fourth wives at a time. However, a woman couldn’t marry another man while she is in a valid marriage. Besides, a man can conclude marriage with “People of the Book”, Christians and Jews, but a woman cannot. If she concludes marriage with Christians or Jews, the marriage will be dissolved. Hence, the law gives the man more freedom than the woman in choosing life time partners.

The man can unilaterally dissolve the marriage even by speaking a simple word, i.e. doctrine of Talaq. However, a woman cannot unilaterally dissolve the marriage. If the woman opts for dissolving a marriage, she should pay compensation to the husband and convince the judge that they couldn’t live with the limits of Allah. Hence, a woman cannot dissolve the marriage by herself, even by paying compensation. Rather, the intervention of the judge is also required under the doctrine of khul. Women assume a huge burden in marriage especially if they are not willing to continue with the marriage. On the contrary, it is very simple for men to get out of a marriage, as a simple word suffices.

Women do not have equal rights, not only in marriage and divorce but in inheritance too. In the focus group discussion it is noted that Somali women assume greater responsibilities than men. Women do all the

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Volume 1, Spring 2011work of the family; they look after goats and camels, they construct their home, they buy household commodities by selling camel milk, charcoal and wood. In practical terms, women are the heads of the family in the Somali society. Though sharia law stipulates that it is the duty of the husband to maintain the wife and the entire family, the practice is different. The practice seems as if the wife should maintain the husband and the entire family. In such circumstances, giving the women half of the share of the men in inheritance will be unjust and unfair.

Women and Statutory LawsThe Somali regional state adopted many proclamations and regulations based on the power vested by the constitution. All the adopted laws are in line with the Somali and the FDRE constitutions and thereby further the interests and rights of women. However, family law is missing from the list of adopted laws. The Somali region has not adopted a regional family law to date. In the interview held with judges (for instance the interview with Esmael Aliye), lawyers (for instance interview with Mengistu Atnafu) and prosecutors (for instance interview with Muhamed Abdifatah), it is stated that the courts apply the 1960 civil code to adjudicate family issues. The 1960 civil code is incompatible with both the FDRE and Somali constitutions. It does not recognize the equal rights of women with men in marriage, as it clearly provides the husband as the head of the family and the wife owes him obedience and should accept his orders.

Moreover, the 1960 civil code allows the system of betrothal and thereby denies the rights of the future spouses to choose once life time partner. Article 560 of the civil code states: “A contract of betrothal is a contract whereby two members of two families agree that a marriage shall take place between two persons, the fiancé and the fiancée, belonging to these two families. Betrothal shall be of no effect unless the families of each of the future spouses consent thereto”. However,

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Volume 1, Spring 2011the FDRE and Somali constitutions and the UDHR declare: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.”

The 1960 civil code provides 15 years for women and 18 for men as the marriageable age. This is also in clear contradiction with universal human rights standards and the constitutions as one should attain full age to marry and found a family. Given that the civil code contravenes the constitution with regard to women’s rights, applying it today is a de jure violation of women’s rights. Hence, the failure of the regional state to adopt its family law in line with the constitutional commitments puts women in a disadvantaged position. Women are unable to secure their equality with men in marriage.

The Compatibility of Customary, Religious and Statutory Laws with the FDRE and Somali ConstitutionsThe FDRE constitution in article 9 stipulates: “The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect”. Any law, customary practice or norm which contravenes with the constitution in general and the human rights chapter in particular shall have no effect. The human rights chapter is more protected especially in the application and implementation of human and democratic rights in Ethiopia. For one thing, as per the supremacy clause any law or customary practice which contravenes the constitution (including the human rights chapter) shall have no effect. For another, the human rights chapter should be interpreted in line with universally accepted human rights principles and any interpretation which goes against the universally accepted standards will not be applicable. Hence, the cumulative

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Volume 1, Spring 2011reading of article 9(1) and 13(2) places human rights in a privileged position than any other principle in the constitution.

The Somali constitution is also a direct replica of the FDRE constitution especially with regard to human rights. Like the FDRE constitution, it subjects the interpretations of the human rights chapter to international human rights instruments which Ethiopia has ratified. Article 14(2) of the Somali constitution provides “The fundamental rights and freedoms specified in this Chapter shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and international instruments adopted by Ethiopia.” By the same fashion the Somali constitution provides a supremacy clause in article 10(1) which says: “Without prejudice to the supremacy of the FDRE constitution, This [Somali] constitution shall be the supreme law of the state. Any law, customary practice or decision of any governmental organ or official which is inconsistent with this constitution shall be of no effect”.

The application of legal pluralism concerning women raises issues of constitutionality and compatibility with international human rights standards. With regard to xeer, both the substantive and procedural laws are incompatible with the FDRE and Somali constitutions and universal human rights instruments which Ethiopia has ratified. The xeer is in contradiction with women’s rights; for instance the right to equality, the right to property, marital, personal and family rights, freedom of movement, right to participation and women’s rights in general are violated. Moreover, xeer governs all aspects of life in the Somali society. It governs both civil and criminal affairs of individuals in terms of inter and intra clan relations, though the constitutions limited its application to personal and family matters. Moreover, as reflected in the focus group discussions every Somali man and woman considers xeer as their true law. There is no practical possibility of pastoral

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Volume 1, Spring 2011women rejecting the xeer and go to other systems to resolve their dispute as they will face social exclusion and stigma. In addition they cannot stand before a customary trial on their own case.

Though the Somali constitution allows the adjudication of personal and family issues based on customary and religious laws, it did not enact a proclamation which gives recognition to the application of xeer unlike sharia law. The spirit of the FDRE and Somali constitution does not suffice for the application of customary and religious laws. The House of People’s Representatives at the federal level and the State Council at the state level should enact a special legislation for the application of these laws but this has not happened unlike shariah law. Hence, one can raise the issue of constitutionality of the application of xeer, even to govern some personal and family issues. The constitutional provision of legal pluralism needs an enabling legislation as it clearly says “particulars shall be determined by law” (FDRE Constitution, Article 34(5)). While a particular law on religious law, sharia law, has been enacted a particular law for the application of customary law, xeer, has not been enacted.

With regard to sharia law, as the available research reveals, there is some contradiction with human rights in general and women rights in particular. Marital, personal and family rights and the right to equality of women are jeopardized under sharia law. The marriageable age (puberty as the marriageable age for women), the freedom to choose one’s partner, the obligation to pay compensation when the woman wants to divorce and the unilateral divorce by the man even by a simple word, does not comply with the constitutional principles and universal human rights ideals. In inheritance too, sharia law provides a woman with half of the share of the man even though the women assumes huge family responsibilities in practice.

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Volume 1, Spring 2011With regard to statutory laws, the failure of the regional state to enact a regional family law by taking into consideration the FDRE and Somali constitutions on the one hand and regional peculiarities on the other hand, is a flaw in the legislative intervention to advance women’s rights in the region. The 1960 civil code does not advance the rights of women as it does not recognize the equality of the spouses. Hence, it is in contradiction with the FDRE and Somali constitutions and needs legislative intervention.

ConclusionBoth the FDRE and Somali constitutions limit the application of customary and religious laws to family and personal matters based on the consent of parties. However, the Somali customary law, xeer, governs every aspect of life of Somalis. Moreover, the practice of xeer raises constitutionality issues as there is no legislation by the State Council which recognizes its application, unlike sharia law. There is also no practical possibility where pastoral women rejects xeer and go to other systems to resolve their dispute as they will face social exclusion and stigma. By the same token, as noted in the interview with women, they are not in the position to reject the jurisdictions of sharia courts, due to the fact that their Muslim identity will be questioned and they will face social exclusion if they fail to abide by sharia law. Hence, women are not in the position to express their informed consent to go to customary and sharia courts as per the constitutional stipulation.

Even by setting aside the constitutionality issue, the practice of xeer is in contradiction with women’s rights; for instance the right to equality, the right to property, marital, personal and family rights, freedom of movement and the right of participation of women are compromised. Similarly under sharia law, marital, personal and family rights and the right to equality of women are jeopardized. On the other hand, most statutory laws enacted by the Somali regional government advance

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Volume 1, Spring 2011the rights of women. However, the failure to enact a regional family law is a flaw in the legislative intervention to advance women’s rights in the region.

The notion of legal pluralism introduced by the FDRE constitution and mainstreamed into regional constitutions such as the Somali constitution recognizes the pluralistic features of the Ethiopian society but also has the effect of endangering women’s rights and contravening the constitution itself. Hence, the FDRE constitution is at the crossroads with regard to cultural relativism and universalism of human rights. It seems as if the constitution entertains the concept of cultural relativism based on the consent of persons and advocates universalism by subjecting the interpretation of human rights to universal human rights instruments. On the one hand, this constitutional design of legal pluralism has the effect of eroding the guarantees the constitution confers for women rights and thereby put the constitutional supremacy in comma. On the other hand, it poses a challenge in upholding constitutional commitments of pluralistic regime of law for a pluralistic society as promised. It can be fair to hold that the mere fact of recognizing women’s rights in the constitutions will not serve any purpose unless implemented. By the same token, recognizing the pluralistic features of the diversified ethnic groups by adopting legal pluralism will not advance the interests of different groups such as women unless properly monitored.

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Volume 1, Spring 2011Garces, N. 2010. Islam, Till Death Do You Part? Rethinking Apostasy Laws Under Islamic Law and International Legal Obligations. 16 Sw. J. Int'l L. (229-263)

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Volume 1, Spring 2011WoldeGiorgis, O. 2002. ‘Democratization and gender’ in Bahiru Zewde and Seigfried Pausewang. Ethiopia: The Challenge of Democracy from Below. Uppsala, Nordiska African institute

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